Buie v. Wisconsin Department of Corrections et al

Filing 140

ORDER signed by Judge Pamela Pepper on 1/11/2018 GRANTING 130 plaintiff's request to accept his response to defendants' summary judgment motion. Defendants' reply, if they choose to file one, due by 1/26/2018. (cc: all counsel, via e-mail to Asua Buie)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ASUA BUIE,
Plaintiff,
v.

Case No. 14-cv-1375-pp

FLOYD MITCHELL,
IONE GUILLONTA,
BRUCE BUEGE,
HEATHER PAULSON,
CHARLES FACKTOR,
CINDY O’DONNELL,
ANA BOATWRIGHT,
CHRIS LOBERG,
KELLY QUARLES, AND
KELLI R. WILLARD WEST,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S REQUEST TO ACCEPT RESPONSE TO
SUMMARY JUDGMENT (DKT. NO. 130) AND DIRECTING DEFENDANTS TO
FILE SUMMARY JUDGMENT REPLY WITHIN FOURTEEN DAYS OF THE
DATE OF THIS ORDER
______________________________________________________________________________
The defendants filed a motion for summary judgment on March 17,
2017. Dkt. No. 102. Since then, the court has granted three motions from the
plaintiff for extensions of time to file his response. Dkt. Nos. 119, 120 and 123.
On September 19, 2017, the court issued an order to show cause, giving the
plaintiff until October 20, 2017 to file his summary judgment response and to
explain why he had not filed a response by the last deadline the court had set.
Dkt. No. 127. In the order, the court warned the plaintiff that if he did not file
his response and explanation by October 20, 2017, the court would rule on the
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defendants’ summary judgment motion without any input from the plaintiff. Id.
at 3. The court also stated that, because it already had granted the plaintiff
three extensions of time, it would not entertain any further motions for an
extension of time. Id. at 3-4.
The court mailed the September 19, 2017 order to the plaintiff at his last
known address, which was the Milwaukee County House of Corrections. On
September 26, 2017, the order came back to the court as undeliverable. Also
on September 26, 2017, the plaintiff telephoned the court and provided a new
address, a street address in Milwaukee, Wisconsin. The court then mailed a
copy of the September 19, 2017 order to the plaintiff at that new address.
The plaintiff did not file a response and explanation by October 20, 2017.
Rather, on November 22, 2017, the court received from him a response to the
defendants’ motion for summary judgment, along with a request that the court
accept his tardy response. Dkt. Nos. 128, 130. The plaintiff’s summary
judgment response consists of a brief, two declarations, proposed findings of
fact, and a response to the defendants’ proposed findings of fact. Dkt. Nos.
128-134. In the plaintiff’s motion asking the court to accept his summary
judgment response, he states that he is homeless, which has hindered him
from timely responding to the court and from filing a response. Dkt. No. 130 at
1-2.
The defendants oppose the plaintiff’s request. Dkt. No. 136. They state
that the court should not consider the plaintiff’s summary judgment response
because his request is unsworn and contains only a vague explanation that his
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homelessness has hindered him from accessing resources to timely respond.
Id. at 2. The defendants also question how the plaintiff lacked the resources to
draft a response or even contact the court prior to October 20, 2017, yet by
November 22, 2017, managed to file a comprehensive summary judgment
response. Id. The defendants conclude that the court should disregard the
plaintiff’s filing and consider their motion unopposed. Id. at 3. The defendants
ask that if the court decides to accept the plaintiff’s filing, it give them fourteen
days to file a reply. Id.
The plaintiff’s failure to file a timely response appears to be related to his
unstable housing situation, rather than a blatant disregard of the court’s order.
The court prefers to resolve cases on the merits rather than on technical or
procedural grounds. While the plaintiff did not comply with the court’s order in
terms of timeliness, he now has filed his response, which means that the court
can resolve the summary judgment motion. Under these circumstances, the
court will grant the plaintiff’s request and consider the plaintiff’s summary
judgment response.
The court GRANTS the plaintiff’s request to accept his response to
defendants’ motion for summary judgment. Dkt. No. 130. The court ORDERS
that if the defendants wish to file a reply in support of their motion, they must

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do so within fourteen days of the date of this order (by Friday, January 26,
2018).
Dated in Milwaukee, Wisconsin this 11th day of January, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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